In re Kah'Nyia J.

A
Mother and Father appeal the termination of their parental
rights to their son on the grounds of abandonment by failure
to support, substantial noncompliance with a permanency plan,
and persistence of conditions. Father also appeals the
termination of his rights on the ground of failure to provide
prenatal support, and Mother also appeals the termination of
her rights to her daughter on the grounds of abandonment by
failure to support, substantial noncompliance with a
permanency plan, and persistence of conditions. Upon a
thorough review of the record, we reverse the termination of
both parents' rights on the ground of persistence of
conditions, and the Father's rights on the ground of
failure to provide prenatal support; we affirm the trial
court in all other respects.

Tenn.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed in Part and Affirmed in Part; Case
Remanded

Rhonda
L. ("Mother") is the biological mother of
Kah'nyia J., born in October 2011. On September 13, 2013,
Mother was arrested and charged with the sale of drugs in a
school zone;[2] at the time she was arrested she gave
Ashley S. her friend and neighbor (herein "Ms.
S."), what has been characterized as a "power of
attorney" for Kah'nyia so that Ms. S could care for
Kah'nyia while Mother was incarcerated.

Mother
gave birth to Darroll L., Jr. ("Darroll Jr."), in
January 2014, while she was incarcerated; Ms. S also took
Darroll Jr. into her home, although the manner in which this
happened is not clear in the record. Darroll L.
("Father") is the biological father of Darroll Jr.;
although the record is not clear, it appears that Father was
arrested at or about the same time as Mother on the same
charge and was also incarcerated on the date Darroll Jr. was
born.

On
March 11, 2014, the Tennessee Department of Children Services
("DCS") received a report that Ms. S. was
physically abusing the children. On March 12, a
representative or representatives of an organization known as
Jonah's Journey came to the jail, and Mother executed a
document, also characterized in the record as a power of
attorney, agreeing to place Kah'nyia and Darroll Jr. with
Brett and Tisha K. ("Petitioners").[3] At some point
DCS filed an Emergency Petition in Davidson County Juvenile
Court to have the children declared dependent and neglected,
and Petitioners entered into an immediate protection
agreement with DCS, resulting in the children being placed in
Petitioners' physical custody on March 13, where they
have remained.[4] At a hearing on May 19, the court
granted temporary legal custody of the children to
Petitioners. On September 2, Petitioners filed an intervening
petition in the dependent and neglect proceeding. On October
3, 2014, a child and family team meeting was held, and a
permanency plan was developed (the "permanency
plan"), setting out Mother and Father's
responsibilities and the tasks they needed to complete during
and after incarceration to regain custody of the children.

A
hearing was held in the dependent and neglect proceeding on
December 9, 2014, and the court entered an order on December
18 (the "December 18 Order"), stating in part:

Upon
agreement of the parties in open court and the record the
Court made the following findings of fact:

1. Kah'nyia J[.] and Darroll L[.], (hereafter the
"Minor Children"), were originally placed in the
home of the Intervening Petitioners on March 13, 2014
pursuant to an immediate protection agreement from the
Department of Children's Services after their
investigation regarding physical abuse.

2. On May 19, 2014, this Court granted temporary custody to
the Intervening Petitioners based on agreement reached by the
parties and a positive report by the Department concerning
the Intervening Petitioners.

4. Since having custody, the Intervening Petitioners have
taken care of all medical and health needs Darroll [ ], Jr.
He currently is in the eighty-fifth (85th) percentile for his
weight, is able to pull himself up, and his fractures are
healing. Also, Kah'nyia is participating in speech
therapy and preschool.

5. The Mother has an extensive criminal history including
convictions for robbery, driving on suspended license, use of
stolen plate, facilitation of sale of drugs, etc. She is
currently incarcerated on a violation of probation charge. On
August 29, 2014 the Mother pled guilty to the sale of a
controlled substance and received a three (3) year sentence.
The Mother stated she expected to be released from prison
within a few days within December 2014.

6. The Father has an extensive criminal record including
convictions for criminal trespass, drug possession with
intent to sell cocaine, sale of cocaine, drug free school
zone, unlawful use of drug paraphernalia, theft of
merchandise, theft of vehicle, criminal impersonation,
kidnapping risk of bodily injury, burglary. The Father
remains incarcerated, but stated he expected his release date
to be sometime in December 2015.

7. Neither parent has stable housing or stable employment.

8. The Minor Children have a strong bond with the Intervening
Petitioners due to the Intervening Petitioners being the
primary caregivers.

9. On October 3, 2014 a child and family team meeting was
held and a noncustodial permanency plan developed to provide
guidance on services and actions steps the Mother and Father
need to complete before regaining custody of the Minor
Children.

10. The Intervening Petitioners have cooperated with the
Court and the Department of Children's Services. They
continue to facilitate agreed upon visitation with the Minor
Children and the Father and Mother.

11. It is the desire of the Intervening Petitioners to be
granted full legal custody of the Minor Children. The
Intervening Petitioners have been married for eight (8)
years. They both have full-time stable jobs ..... They have a
spacious . . . home that provides the Minor Children with
their own space. The Intervening Petitioners are active
[church] members . . . and have no criminal history. The
Intervening Petitioners have a strong family support group
that can assist with the Minor Children. Therefore, the
Intervening Petitioners are fit and able to provide to
permanency for the Minor Children.

Based
on these findings, the court: (1) adjudicated the children to
be dependent and neglected, (2) ordered that Petitioners
retain custody of the children, (3) incorporated the
Permanency plan, and (4) ruled that Mother would have until
September 2, 2015, and Father would have until September 2,
2016 "to work services and action steps outlined in the
non-custodial permanency plan to regain custody" of
their respective children.

Mother
was released from prison on July 29, 2015, and Father was
released on August 13, 2015; on August 24, Mother filed a
pro se motion in Davidson County Juvenile Court,
requesting full custody of the children. A hearing on the
motion was continued several times; on December 14, before
Mother's motion was heard, Petitioners filed the petition
to terminate the parental rights of Mother and Father in
Robertson County Circuit Court that is at issue in this
appeal, and the juvenile court stayed the dependent and
neglect proceeding.

As
grounds for termination of both parents' rights, the
petition alleged abandonment by failure to provide support or
visit the children, substantial noncompliance with the
permanency plan, and persistence of conditions; in addition
the petition alleged failure to provide prenatal support as a
ground for termination of Father's rights to Darroll
Jr.[5] Mother and Father both filed pro
se answers; in due course, the trial court found them to
be indigent, appointed counsel for each, and amended answers
were filed on behalf of both. The court also appointed a
Guardian ad Litem.

The
case proceeded to trial, and the court entered an order on
March 7, 2017, terminating Mother's and Father's
rights to both children on the grounds of abandonment by
failure to support (Tenn. Code Ann. § 36-1-113(g)(1)),
substantial noncompliance with the permanency plan (Tenn.
Code Ann. § 36-1-113(g)(2)), and persistence of
conditions (Tenn. Code Ann. § 36-1-113(g)(3)); further,
the court terminated Father's rights to Darroll Jr. on
the ground of failure to provide prenatal support (Tenn. Code
Ann. § 36-1-113(g)(9)). The court also found that
termination of Mother's and Father's rights was in
the children's best interest.

Mother
and Father appeal; each contends that neither the grounds for
termination found by the court nor the finding that
termination of their rights is in the children's best
interest is supported by clear and convincing evidence.

II.Standard of Review

Parents
have a fundamental right to the care, custody, and control of
their children. Stanley v. Illinois, 405 U.S. 645,
651 (1972); In re Adoption of A.M.H., 215 S.W.3d
793, 809 (Tenn. 2007). However, that right is not absolute
and may be terminated in certain circumstances. Santosky
v. Kramer, 455 U.S. 745, 753-54 (1982); State
Dep't of Children's Services v. C.H.K., 154
S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes on
termination of parental rights provide the only authority for
a court to terminate a parent's rights. Osborn v.
Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental
rights may be terminated only where a statutorily defined
ground exists. Tenn. Code Ann. § 36-1-113(c)(1);
Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002);
In re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App.
1998). To support the termination of parental rights, only
one ground need be proved, so long as it is proved by clear
and convincing evidence. In the Matter of D.L.B.,
118 S.W.3d 360, 367 (Tenn. 2003).

Because
the decision to terminate parental rights affects fundamental
constitutional rights and carries grave consequences, courts
must apply a higher standard of proof when adjudicating
termination cases. Santosky, 455 U.S. at 766-69. A
court may terminate a person's parental rights only if
(1) the existence of at least one statutory ground is proved
by clear and convincing evidence and (2) it is shown, also by
clear and convincing evidence that termination of the
parent's rights is in the best interest of the child.
Tenn. Code Ann. § 36-1-113(c); In re Adoption of
A.M.H., 215 S.W.3d at 808-09; In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002). In light of the heightened
standard of proof in these cases, a reviewing court must
adapt the customary standard of review set forth by Tenn. R.
App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654
(Tenn. Ct. App. 2004). As to the court's findings of
fact, our review is de novo with a presumption of
correctness unless the evidence preponderates otherwise, in
accordance with Tenn. R. App. P. 13(d). Id. We must
then determine whether the facts, "as found by the trial
court or as supported by the preponderance of the evidence,
clearly and convincingly establish the elements"
necessary to terminate parental rights. Id.

In the
Memorandum Opinion and Order, the court made credibility
findings as to Mother and Father and Petitioners. As noted in
Kelly v. Kelly, deference to a trial court's
determination of witness credibility is substantial, and our
review of those determinations is substantially limited:

When it comes to live, in-court witnesses, appellate courts
should afford trial courts considerable deference when
reviewing issues that hinge on the witnesses' credibility
because trial courts are uniquely positioned to observe the
demeanor and conduct of witnesses. Appellate courts will not
re-evaluate a trial judge's assessment of witness
credibility absent clear and convincing evidence to the
contrary. In order for evidence to be clear and convincing,
it must eliminate any serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.
Whether the evidence is clear and convincing is a question of
law that appellate courts review de novo without a
presumption of correctness.

Abandonment
is identified as a ground for termination in Tennessee Code
Annotated section 36-1-116(g)(1) and defined at section
36-1-102(1)(A), which reads in pertinent part:

For a period of four (4) consecutive months immediately
preceding the filing of a proceeding or pleading to terminate
the parental rights of the parent or parents or the guardian
or guardians of the child who is the subject of the petition
for termination of parental rights or adoption, that the
parent or parents or the guardian or guardians either have
willfully failed to visit or have willfully failed to support
or have willfully failed to make reasonable payments toward
the support of the child[.]

The
court made the following findings relative to the ground of
abandonment by failure to support:

i. The Mother and Father never paid any financial support in
August-December 2015, which were the four (4) months
preceding the filing of the petition.

ii. Tenn. Code. Ann. § 36-1-102(1)(H) states "Every
parent who is eighteen (18) years of age or older is presumed
to have knowledge of a parent's legal obligation to
support such parent's child or children."

iii. The Father testified he was already paying child support
on a previous child, so he had direct knowledge of his
responsibility to pay child support for any child. Neither
the Mother nor the Father presented any testimony or evidence
that they did not know they needed to pay child support.

iv. The Mother and Father both testified that they had no
issues obtaining employment. Also, they testified they had no
physical ailment or disability that prevented them from
working and earning money. Although, their work history
appears to be unstable by the number of jobs they held in a
short amount of time, it is clear to the Court that the
Mother and Father had no trouble finding work and there was
no reason they could not provide financial support to their
children. The parents testified that they were working and
saving money not only for obtaining lodging, but also to get
necessary furnishings, clothing, incidentals and an
automobile to reestablish themselves. While it is
understandable that these things were indeed necessary for
them to reestablish themselves, they nonetheless chose not to
devote any of their financial resources to the support of the
children. It is clear the Mother and Father willfully chose
not to support their Minor Children despite the ability to do
so.

v. The Mother and Father admitted they paid no child support
during this time period. They stated they offered, but were
told by the Petitioners no money was needed.

vi. The Petitioners testified that the testimony of the
Mother and Father was not truthful. The Petitioners testified
that Father and Mother never offered to pay any financial
support for the Minor Children. The Mother and Father's
testimony was contradicted on many issues, including this
issue, and the Court finds Petitioners testimony on this
issue to be more credible than that of Mother and Father.

On the
basis of these findings, the trial court ruled that Mother
and Father:

[A]bandoned the Minor Child as defined in Tenn. Code Ann.
§ 36-1-102(1)(A) as they have never been a source of
financial, physical, or emotional support for the Minor
Children. For a period of four (4) consecutive months
immediately preceding the filing of the original petition, as
well as immediately preceding the filing of the amended
petition, the Respondents willfully failed to provide
monetary support of any kind for the Minor Children.

Mother
and Father argue that the court erred in finding that their
failure to pay support was willful and that their attempts to
provide support were rejected by Petitioners.

A
failure to provide support is not sufficient, on its own, to
establish abandonment; that failure to support must be
willful. A failure to support is "'willful' when
a person [1] is aware of his or her duty to visit or support,
[2] has the capacity to do so, [3] makes no attempt to do so,
and [4] has no justifiable excuse for not doing so."
In re Audrey, 182 S.W.3d 838, 864 (Tenn. Ct. App.
2005) (footnote omitted). Further, this court has recognized:

Willfulness of a parent's conduct depends on the
parent's intent, and intent is seldom capable of direct
proof. In re Audrey S., 182 S.W.3d at 864 (citing
In re Adoption of S.M.F., No. M2004-00876-COA-R9-PT,
2004 WL 2804892, at *8 (Tenn. Ct. App. Dec. 6, 2004)).
Triers-of-fact lack the ability to peer into a person's
mind to assess intentions or motivations and must infer
intent from circumstantial evidence, including the
parent's actions or conduct. Id. Because
testimony may be critical to the determination of whether a
parent's conduct was willful, trial courts are best
situated to make a determination of willfulness. In re
D.L.B., 118 S.W.3d at 367. The question of intent or
willfulness depends on the totality of the circumstances, and
the facts must be applied to the standard definition of
willfulness. V.D. v. N.M.B., No.
M2003-00186-COA-R3-CV, 2004 WL 1732323, at *6 (Tenn. Ct. App.
July 26, 2004).

With
respect to this element, Mother argues that her failure to
pay support was not willful because "[t]here was no
Court Order for child support." Contrary to Mother's
argument, the law is clear that "[t]he obligation to pay
support exists even in the absence of a court order to do
so." State Dep't of Children's Servs. v.
Culbertson, 152 S.W.3d 513, 523-24 (Tenn. Ct. App. 2004)
(citations omitted). Moreover, '[a]ll parents have a duty
to support their children, " In re M.J.B., 140
S.W.3d 643, 655 (Tenn. Ct. App. 2004), and "[e]very
parent . . . is presumed to have knowledge of a parent's
legal obligation to support such parent's child or
children." Tenn. Code. Ann. § 36-1-102(1)(H).

Accordingly,
Mother is deemed to be aware of that obligation.

The
trial court found that Father was making child support
payments for his other children, which made him aware of his
responsibility to pay support. This holding is supported by
Father's testimony that he is paying "just under
$800 a month" in child support for two other children.

2.
Capacity to Pay

The
trial court made the following findings relative to
Mother's and Father's capacity to support the
children:

iv. The Mother and Father both testified that they had no
issues obtaining employment. Also, they testified they had no
physical ailment or disability that prevented them from
working and earning money. Although their work history
appears to be unstable by the number of jobs they held in a
short amount of time, it is clear to the Court that the
Mother and Father had no trouble finding work and there was
no reason they could not provide financial support to their
children. The parents testified that they were working and
saving money not only for obtaining lodging, but also to get
necessary furnishings, clothing, incidentals and an
automobile to reestablish themselves. While it is
understandable that these things were indeed necessary for
them to reestablish themselves, they nonetheless chose not to
devote any of their financial resources to the support of the
children. It is clear the Mother and Father willfully chose
not to support their Minor Children despite the ability to do
so.

In
their briefs, neither Mother nor Father cites evidence which
they contend preponderates against the finding; rather they
challenge the sufficiency of the evidence to support the
ground. Upon our review, the testimony supports the findings.
The evidence shows that Mother and Father were employed for
the majority of the pertinent time period and were receiving
income and, therefore, had funds with which to support the
children.[6] In addition, in the court's
specific credibility findings, the court noted that, contrary
to Mother's testimony, she received food stamp benefits
for Kah'niya during the period July through December
2015, even though she did not have custody of her; Mother
does not dispute this finding.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;3.Attempt ...

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